HOFFMAN v. CITY OF RED BLUFF

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District Court of Appeal, Third District, California.

Harry E. HOFFMAN et al., Plaintiffs and Appellants, v. CITY OF RED BLUFF, a municipal corporation, et al., Defendants and Respondents.

Civ. 10851.

Decided: February 17, 1965

Rawlins Coffman, Noel Watkins, by Rawlins Coffman, Red Bluff, for appellants. Sturgis, Den-Dulk, Douglass & Anderson, Oakland, James G. Ford, Red Bluff, for respondents.

Plaintiffs are the owners of 8 out of 37 parcels of real estate comprising a special assessment district which the City of Red Bluff established under the Improvement Act of 1911 (Sts. & Hy.Code § 5000 et seq.) for the purpose of financing a sewage collection system and pumping plant. Plaintiffs charge that the maximum assessments permitted by law aggregate $7,255, or one-half the ‘true value’ of their lands; while the assessments actually levied total $46,694.54 (more than three times the alleged value of plaintiffs' properties). In this suit against the city plaintiffs seek to enjoin collection of assessments exceeding one-half the true value of their real estate; or, in the alternative, invalidation of the assessment proceedings.

The complaint is in three counts. The amended first count alleges that the City of Red Bluff failed to comply with requirements of the Special Assessment Investigation, Limitation and Majority Protest Act of 1931 (Sts. & Hy.Code, § 2800 et seq., which we shall elliptically call the ‘Majority Protest Act’). The second count is based on the theory that the assessments on three parcels owned by plaintiffs Durand and Vestal are void, since those properties were outside the city boundaries of Red Bluff during the early stages of the proceedings. The third count alleges fraud.

The trial court sustained demurrers to the first two counts, denying leave to amend. The action went to trial on the third count and judgment was entered for the defendants. Plaintiffs appeal from the judgment, urging that the court erred in sustaining the demurrers to the first two counts. They make no attack on the adverse determination of the third count. Plaintiffs do not claim that the court abused its discretion in not allowing them leave to plead additional facts after the demurrers to the first two counts were sustained. In their appeal briefs, however, counsel to seek an opportunity to amend their complaint on behalf of plaintiffs Durand and Vestal.

A brief description of the statutes will assist the reader's appraisal of the pleaded facts.

The Majority Protest Act establishes a separate statutory procedure as a preliminary to the commencement of assessment proceedings under one or another of the public improvement laws, such as the 1911 act. Its primary purpose, one court has observed, is to establish a continuing limitation (i. e., 50 per cent of property value) on the assessments to be levied in the later proceeding. (Gaume v. City of Redlands, 23 Cal.App.2d 464, 471, 73 P.2d 917.) With certain exceptions, a public agency proposing to finance an improvement project by special assessments must comply with the Majority Protest Act before ordering the work. (Sts. & Hy.Code, § 2820.)1 The legislative body first adopts a preliminary resolution or ordinance describing in general the character of the proposed project and the lands to be assessed to pay for it. (Secs. 2821–2822.) If, after adopting the preliminary resolution or ordinance, the legislative body finds that the probable assessments will not exceed the 50 per cent monetary limit, a ‘summary’ proceeding is available. Under the summary proceeding notices are sent to the property owners, giving them an opportunity to demand a formal investigation, report and hearing; unless the owners of 15 per cent of the land make such a demand, the public body may dispense with those formalities and commence proceedings under the Improvement Act of 1911 or other special assessment law. (Secs. 2950–2956; see Garibaldi v. City of Daly City, 63 Cal.App.2d 480, 147 P.2d 122.) If the summary proceeding is not available or not followed, a formal report must then be prepared, describing the project, its estimated cost, the land to be assessed, declaring the ‘true value’ of each parcel and the estimated assessment to be levied against it. (Sec. 2825.) A public hearing is then to be held, upon notice to the property owners who are to pay for the work. (Secs. 2850–2859.) If protests are filed by owners of a major part of the property within the proposed district, the project must be abandoned. (Sec. 2930.) In the case of sewerage facilities, a majority protest may be overridden by a four-fifths vote of the legislative body. (Sec. 2932; see City of Del Mar v. Burnett, 223 Cal.App.2d 754, 35 Cal.Rptr. 920.) Again, if the report shows that the estimated assessment upon any parcel will exceed one-half its true value, the proposal must be abandoned or the assessment reduced, unless four-fifths of the legislative body vote to override the 50 per cent limitation. (Secs. 2900–2905.)

Two provisions of the majority Protest Act are especially significant in this case. In deference to public health needs, section 2808 eliminates further steps under the Majority Protest Act if the legislative body spreads upon its minutes and adopts by a four-fifths vote of its membership a written recommendation by the health officer that assessment proceedings for the construction of sewerage facilities are necessary as a health measure.2 Section 3012 is a 30-day statute of limitations applicable to lawsuits and other proceedings attacking actions under the Majority Protest Act, including an action taken under the special provisions of section 2808 relating to sewerage projects.3

In sustaining the demurrer to the first court of the complaint, the trial court specifically held that the cause of action was barred by section 3012 and that the pleaded facts did not raise an estoppel against defendants to plead the bar of limitations.

According to the allegations of the complaint, the first official step was the adoption of Resolution No. 1959–A by a unanimous vote of the city council of Red Bluff on May 5, 1959. The resolution was entitled ‘RESOLUTION OF PRELIMINARY DETERMINATION THAT PUBLIC CONVENIENCE AND NECESSITY REQUIRE THE CONSTRUCTION OF SANITARY SEWERS AS A HEALTH MEASURE AND REQUESTING THE OPINION OF THE HEALTH OFFICER.’

Resolution No. 1959–A made certain findings concerning the proposed sewer construction. Part of the findings state: ‘The construction of sanitary sewers together with appurtenances, as hereinabove described, within said area is hereby found to be necessary as a health measure.’ The resolution also stated:

‘BE IT FURTHER RESOLVED by the City Council of the City of Red Bluff, and said City Council hereby finds, that said project is feasible; that the properties to be assessed will be able to carry the burden of the proposed assessments; that the contemplated improvement is one in which the probable assessments will not exceed the limitations set up in Division 4, Part 2, of the Streets and Highways Code of the State of California, and that he limitations on the amount of the assessments set up in said Division 4 of the Streets and Highways Code may be dispensed with; and

‘BE IT FURTHER RESOLVED that the City Council of the City of Red Bluff hereby requests the Health Officer of the City of Red Bluff, Tehama County, California, to investigate the sanitary conditions in said proposed assessment district of the City of Red Bluff, and if in said investigation said Health Officer finds that the installation of sanitary sewers in said area is necessary as a health measure that said Health Officer of the City of Red Bluff be requested to certify to this City Council the necessity of the construction of said sanitary sewers as a health measure and to recommend to this City Council of the City of Red Bluff that assessment proceedings be instituted for the construction of said Sanitary Sewers; * * *.’

On May 15, 1959, the city health officer wrote a letter to the city council in response to Resolution No. 1959–A. The letter stated: ‘Please be advised that I have examined the area shown on the map which is attached to your resolution No. 1959–A passed on the 5th day of May, 1959.

‘Please be advised that from my examination of said area the installation of sanitary sewers in said area is, in my opinion, necessary as a health measure for the inhabitation of said area. It is therefore my recommendation that you institute special assessment district proceedings for the installation of a proper system of sanitary sewers to serve said area.’

At the time these steps were taken, the three parcels owned by Durand and Vestal were outside the municipal boundaries of Red Bluff, but were included in an area whose annexation to the city was pending. On May 19, 1959, four days after the health officer's letter to the city council, the city filed a certified copy of the annexation ordinance with the Secretary of State, thus completing the annexation proceedings. (Gov.Code, §§ 35317, 35318.)

The city council met on the evening of May 26, 1959. Three members of the council were present, two absent. By a vote of the three members present, the council adopted Resolution No. 1959–E directing that the May 15, 1959, letter of the health officer be spread upon the minutes of the council.4

Apparently under the impression that it had dispensed with further proceedings under the Majority Protest Act, the city council then commenced proceedings under the Improvement Act of 1911. On August 2, 1960, it adopted Resolution No. 1959–H, a resolution of intention to do the work. The complaint does not allege that the city failed to provide other notices required by the Improvement Act of 1911, such as notice of the adoption of the resolution of inention or notice of the award of the contract (secs. 5194, 5248); nor do plaintiffs allege that they filed protests before the contractor commenced construction. (See §§ 5220 et seq., 5258.) By July 14, 1961, the project had apparently been completed, because on that date individual assessments for the project cost were made against the individual parcels in the improvement district, and the city clerk issued a notice that written appeals could be filed and would be heard on the evening of August 1, 1961. (See §§ 5360–5367.) At that point, for the first time, plaintiffs entered the proceedings. Their entry was manifested by the filing of written protests on July 31, 1961. Gravamen of the protests, so far as relevant to the present appeal, was that the city council had not complied with section 2808 and had not effectively dispensed with proceedings under the Majority Protest Act; that the assessments far exceeded one-half the value of plaintiffs' properties; that the council's failure to proceed under the Majority Protest Act invalidated the assessment proceedings. Plaintiffs Vestal and Durand also objected that their properties were not part of the City of Red Bluff on May 5, 1959, when the council adopted Resolution No. 1959–A.

At a meeting on August 28, 1961, the city council rejected plaintiffs' appeals and this suit was filed 22 days later, on September 19, 1961.

In an effort to avoid the 30-day period of limitations described in section 3012, plaintiffs' amended complaint alleges facts designed to fasten an estoppel on the city. Plaintiffs allege in substance that Resolution No. 1959–A, dated May 5, 1959, falsely informed them that the probable assessments would not exceed the 50 per cent limitation fixed by the Majority Protest Act; that plaintiffs were misled by this statement into believing that the aggregate amount of their assessments would not exceed $7,255, or one-half the true value of their lands; that the assessments actually levied aggregated $46,694.54, over six and one-half times greater than the anticipated maximum; that plaintiffs relied on the assurance in the May 5, 1959 resolution that their maximum assessments would not total more than one-half their property values and thus did not ‘police’ the assessments proceedings or file protests; that the actual assessments were revealed to them for the first time after the public notice of July 14, 1961. Plaintiffs urge that such pleaded allegations bring their case within the doctrine of Farrell v. County of Placer, 23 Cal.2d 624, 145 P.2d 570, 153 A.L.R. 323, and similar decisions holding that a public agency may be estopped from asserting noncompliance with a statutory deadline where the plaintiff has been misled by reliance upon the conduct of public officials.

Initially, we seek out the effect of section 3012, the 30-day limitation statute (fn. 3, supra). Whether a public improvement shall be constructed is a question of public interest alone. (Ferry v. O'Brien, 188 Cal. 629, 636, 206 P. 449; Capital Freight Lines v. City of Sacramento, 206 Cal.App.2d 279, 23 Cal.Rptr. 752.) Whether a person's property shall be assessed for it and, if so, how much, are questions directly affecting the owner. In the resolution of the latter questions, the owner's constitutional right to due process of law demands that he be provided with notice and an opportunity to object. (Brill v. City of Los Angeles, 209 Cal. 705, 707–708, 289 P. 850; City of Del Mar v. Burnett, supra, 223 Cal.App.2d at p. 758, 35 Cal.Rptr. 920.) At some point in the proceedings a statutory scheme for the levy of assessments to pay for local improvements must include ‘such notice and opportunity for hearing to the owner of property taxed as will be sufficient to constitute the due process of law required by the Constitution, * * *.’ (Chase v. Trout, 146 Cal. 350, 359, 80 P. 81, 84.)

Consider the stringent 30-day limitation of section 3012 in juxtaposition to an action under section 2808. The latter permits the public body to impose an unlimited assessment on property, regardless of its value, when the health officer and four-fifths of the legislative body find that a sewerage project is necessary as a health measure. Such a determination, says the statute, is ‘final and conclusive’ in the absence of actual fraud. Section 2808 prescribes no notice to property owners. The ‘final and conclusive’ decision may be made at any meeting of the legislative body without the knowledge of vitally affected property owners. The property owner is confronted with a 30-day period of limitations running from an event of which he has no notice.

The 50 per cent limitation on assessments is statutory, derived from the Majority Protest Act itself. The owner has no vested right to be assessed at less than 50 per cent. The crux of the matter is not his right to an assessment under 50 per cent, but his constitutional right to notice and hearing preceding an official act which vitally affects the amount of his liability. That the official act originates in a statutory command does not mean that the owner may be deprived of his property without notice and hearing. (Beck v. Ransome-Crummey Co., 42 Cal.App. 674, 679, 184 P. 431.) The very existence of the Majority Protest Act supplies the owner with a substantial assurance that special assessments will not pass the 50 per cent barrier. Statutory provisions for summary proceedings and for an override vote (secs. 2905, 2955) may detour around the barrier, but these particular detours may be taken only after compliance with statutory demands for notice and hearing. Furnished with advance knowledge of an adverse determination, an owner may be fairly barred by limitations if he fails to attack deficient proceedings within a prescribed time. (See, for example, Garibaldi v. City of Daly City, supra, 63 Cal.App.2d 480, 147 P.2d 122.) Section 2808 supplies an additional means for detouring the barrier, but this time without notice and opportunity to be heard. Applied as a statutory deadline against objections to the amount of his assessment, section 3012 would stifle the owner's protest before he has had an opportunity to cry out. Having lulled a man to sleep, the law in fairness should ring an alarm clock before charging him with lethargy.

What constitutes a vested right is a matter for the courts. Relative to constitutional guarantees, a vested right is an interest which the state should recognize and protect and of which the individual may not be deprived arbitrarily. (Miller v. McKenna, 23 Cal.2d 774, 783, 147 P.2d 531.) An assessment unlimited by law and unrelated to the value of real estate before or after completion of the public improvement may be practically confiscatory. (See Spring Street Co. v. City of Los Angeles, 170 Cal. 24, 29–31, 148 P. 217, L.R.A.1918 E, 197; 14 McQuillin, Municipal Corporations, secs. 38.32, 38.122, 38.124.) A property owner has a deep and abiding interest in a legal limitation which fixes a 50 per cent ceiling on improvement assessments. He may not have a vested interest in this limit in the sense that it becomes a fixed guaranty; he does have a vested interest in the sense that it may not be demolished by agency action without notice and hearing.

Section 3012 is not only a statute of limitation. Coupled with the declaration of section 2808 imparting ‘final and conclusive’ character to the legislative body's determination, it becomes very much like a validating law, attempting to immunize from attack any and all actions more than 30 days old. A validating statute cannot cure the failure to provide such notice and opportunity for hearing as constitutes compliance with due process. (Miller v. McKenna, supra, 23 Cal.2d at p. 782, 147 P.2d 531.) When a statute makes official action ‘conclusive evidence’ of the regularity of all prior proceedings, it cannot cure the violation of due process which occurs when the property owner has no opportunity to present objections and grievances.5 (Chase v. Trout, supra, 146 Cal. at pp. 356–361, 80 p. 81.)

Invoked to bar a landowner from claiming redress 30 days from the date of an official act of which he had no prior or subsequent knowledge, section 3012 would be altogether unreasonable and constitutionally vulnerable. (See Rand v. Bossen, 27 Cal.2d 61, 64–65, 162 P.2d 457; Hayes v, Douglas County, 92 Wis. 429, 65 N.W. 482, 31 L.R.A. 213; 34 Am.Jur., Limitation of Actions, secs. 22–26.) Courts prefer to construe a law rather than invalidate it. (City of Los Angeles v. Belridge Oil Co., 41 Cal.2d 823, 833, 271 P.2d 5; 11 Cal.Jur.2d, Constitutional Law, sec. 61.) The Majority Protest Act, of which section 3012 is part, establishes a set of actions preliminary to institution of special assessment proceedings. (Sec. 2820; Gaume v. City of Redlands, supra, 23 Cal.App.2d at p. 471, 73 P.2d 917.) The apparent objective of section 3012 is to allow the assessment procedures to move along in legal safety once the 30-day period has passed. A plaintiff seeking to enjoin a proceeding taken after notice and an opportunity to be heard must make his attempt within 30 days. (Garbaldi v. City of Daly City, supra, 63 Cal.App.2d 480, 147 P.2d 122.) Where, in contrast, a property owner has no advance opportunity to protest an official act adversely affecting the amount of his individual assessment, due process demands that he have that opportunity later, at some point before the assessment congeals. (See In re Orosi Public Utility Dist. in Tulare County, 196 Cal. 43, 51, 235 P. 1004.) Limited in scope by that demand, section 3012 does not foreclose objections to the amount of his individual assessment by a property owner who alleges absence of notice and opportunity for protest preceding an action taken under section 2808. The allegations of the complaint place plaintiffs in that category.

The trial court assigned section 3012 as the sole ground for sustaining the general demurrer to the first count of the complaint. Although we disagree with that ruling, defendants are entitled to have us consider other theories urged as reasons for affirmance of the judgment. (3 Witkin, Cal. Procedure, Appeal, sec. 76, pp. 2234–2235.) On the merits the central question is whether the actions taken by the health officer of Red Bluff and the city council adequately answered the requirements of section 2808, thus eliminating further proceedings under the Majority Protest Act. At this point defendants ask us to consider a letter from the health officer to the city council which preceded the council's adoption of Resolution No. 1959–A on May 5, 1959. This letter is not pleaded as part of the complaint. Defendants urge that it be judicially noticed.

It is quite true that a complaint otherwise good on its face is nevertheless subject to demurrer when judicially noticed facts render it defective. Defendants cite Watson v. Los Altos School Dist., 149 Cal.App.2d 768, 30, P.2d 872, in which the court took judicial notice of the unpleaded records of the State Board of Education and of a county planning commission in considering a general demurrer to the complaint. In that case judicial knowledge was ascribed to the authority of subdivision 3 of section 1875, Code of Civil Procedure, authorizing judicial notice of ‘[p]ublic and private official acts of the legislative, executive and judicial departments of this State.’ There the documents were on file in the hands of a state agency and in the offices of a county, a political subdivision of the state. Here we are asked to take judicial notice of a municipal document. There is scant precedent for judicial notice of the written acts of officers of municipal corporations. (See, however, Chambers v. Ashley, 33 Cal.App.2d 390, 91, p.2d 932.) So long as courts deny judicial knowledge of municipal ordinances, there is little logic in recognizing official records of a municipality. (See City of Oakland v. Brock, 8 Cal.2d 639, 641, 67 P.2d 344; Witkin, Cal.Evidence, secs. 47, 49.) There is equal lack of logic in closing judicial eyes to municipal documents but opening them to county documents. To us, the most persuasive aspect of the matter is a practical one—the thought that reversal of the judgment in this case and trial on the merits would entail ultimate admission of the health officer's letter in evidence. Thus it would play a role in the final judgment, even though we now reject judicial knowledge of it. We would be wasting the time of courts and counsel and stimulating the unnecessary extension of litigation by a doctrinaire refusal to consider a public document which bears directly on the merits of the case.6

The letter in question was dated March 16, 1959, almost six weeks before the meeting of May 5 at which the council unanimously adopted Resolution No. 1959–A. Its substance is as follows: ‘In my opinion I deem it advisable to construct a sewage disposal system in the North Addition of the City of Red Bluff. I consider this necessary not only for orderly growth of the area but for public health reasons, particularly that of mosquito abatement and the correction of frank [sic] sewage overflow in this area.’

Defendants point to this letter of March 16, not the letter of May 15, as evidence justifying the city council's finding under section 2808, contending that Resolution No. 1959–A, unanimously adopted on May 5, constituted a finding of necessity by the requisite vote of four-fifths of the council members; that Resolution No. 1959–E, spreading the health officer's May 15 communication on the minutes of the council, adequately complied with section 2808, which requires a four-fifths vote for the finding of necessity but not for the ministerial order spreading the health officer's recommendation on the minutes.

These arguments of the city retroactively place a characterization on the 1959 actions which is quite inconsistent with the expressed intention of the municipal officials in 1959. Imperfectly drafted documents and council proceedings should be construed, if possible, to give them whatever effect was intended by the officials at that time. Chronologically, the first document is the health officer's letter of March 16, in which he ‘deem[ed] it advisable’ to construct a sewage disposal system in a designated area. The complaint makes it evident that some part of the area in question was outside the existing boundaries of the city; that it was the subject of annexation proceedings and of a proposed real estate development. The health officer's recommendation had a dual character, aimed not only at health needs but the ‘orderly growth of the area.’ The latter is not clearly within the avowed purpose of section 2808, which seems confined to health needs.7 Whether for this or for some other reason the city council apparently did not accept the March 16 letter as the recommendation or opinion it wanted. The title of the resolution adopted on May 5 shows that the council was making a preliminary (rather than final) determination of public health and that it was requesting a prospective ‘opinion’ of the health officer. Paradoxically, the body of the resolution contains an unconditional finding that sewers were necessary as a health measure, but then requests the health officer to make an investigation and recommendation for the commencement of special assessment proceedings. The inescapable inference of the May 5 resolution is that the city council did not accept the letter of March 16 in fulfillment of the health officer's action under section 2808, but sought a future statement from the health officer as the basis for a future action of the council. To regard this resolution as the council's determination under section 2808 would give it an effect not intended by the council at the time of its adoption.

Further, the council's statement in Resolution No. 1959–A indicating (although with an inaccurate statutory reference) that the probable assessments would not exceed the limitations of the Majority Protest Act demonstrates that the council, as it sat in session on May 5, 1959, intended prospective abolition of the 50 per cent ceiling only in the belief that the sewer project would remain below the ceiling.8

The health officer's letter of May 15, 1959, was a response to the council's invitation. It stated that sewers were ‘necessary as a health measure for the inhabitation of said area.’ Although it denotes a future and conditional rather than existing health need, we may assume for present purposes that the letter sufficiently filled the statutory bill. The council's responsive action, Resolution No. 1959–E of May 26, did not. It was adopted by three rather than the necessary four votes and does not even supply an affirmative finding on the score of the necessity of assessment proceedings to pay for the sewer project. Indeed, these circumstances furnish some ground for belief that the three members present at the May 26 meeting were awaiting a meeting of the full council before proceeding to the four-fifths vote required by section 2808.

In seeking to fit these various documents into a composite pattern satisfying statutory demands, defendants would now have it that the city council adopted one recommendation (the March 16 communication) by the requisite four-fifths vote and spread an entirely different recommendation (the May 15 letter) on the council minutes. The pieces just do not fit.

The city urges that deficiencies in these official papers are only technical, that the city substantially complied with the law. We abjure a pettifogging insistence on the dotting of i's and the crossing of t's. The problem, rather, is one of finding an intention to do what the statute demanded. On the face of the papers the city council had no such intention. Further, the requirement of a four-fifths vote is hardly ‘technical.’ The statute means that any two out of a five-man deliberative body may weigh project costs against health needs and, if so minded, insist that property owners retain protection of the 50 per cent assessment limitation. The official acts of the Red Bluff council do not show that four members decided otherwise. On the face of the matter, plaintiffs were assessed in excess of the 50 per cent limitation provided by law, not only without notice and hearing, but contrary to the stated intention of the city council as set forth in the identical resolution which is now paraded as a declaration of intent to dispense with the limitation law. The deviation is hardly ‘technical.’

We conclude that the complaint, even when expanded by the judicially noticed document of March 16, sufficiently alleges a failure to comply with section 2808 and to take the steps prescribed by the Majority Protest Act. Since compliance with one or another of the escape provisions of that act is a prerequisite to individual assessments exceeding 50 per cent of true value, the complaint adequately alleges facts establishing invalidity of the excess assessments.

Contending that judicial attack on assessment proceedings is limited to jurisdictional defects (see Maxwell v. City of Santa Rosa, 53 Cal.2d 274, 277, 1 Cal.rtpr. 334, 347 P.2d 678), defendants urge that the council's asserted failure to waive the limitation law by a four-fifths vote under section 2808 is not jurisdictional, since the city council might have avoided or remedied that defect earlier in the proceedings. Defendants infer that the Red Bluff city council could have corrected defective action had plaintiffs made earlier protests. They point to curative provisions of the 1911 law and to a series of separate validating acts which impart finality to the legislative body's rejection of assessment appeals as to nonjurisdictional errors and irregularities.

Generally, defects which the legislative body may rectify are regarded as irregularities of a nonjurisdictional character, as to which appeal to the legislative body is the only remedy. (Southlands Co. v. City of San Diego, 211 Cal. 646, 657, 297 P. 521; Chase v. Trout, supra, 146 Cal. at p. 357, 80 P. 81.) The objective of appeal to the legislative body is not to lay a foundation for a future lawsuit, but to get the defect remedied. Hence, in precise terms, the question is whether the legislative body has power in the proceeding before it to cure the alleged defect. (Southlands Co. v. City of San Diego, supra, 211 Cal. at p. 657, 297 P. 521.)

No such power existed here. The Majority Protest Act (specifically section 2820) commands compliance with its provisions before a construction order is made. This statutory demand upon the Red Bluff city council could not be met after the project had been completed. At some point during the process, a landowner must have an opportunity for hearing on the amount of his assessment. (In re Orosi Public Utility Dist., in Tulare County, supra, 196 Cal. at p. 51, 235 P. 1004.) Plaintiffs had no notice of any proposed assessment exceeding 50 per cent of value until the project cost was spread. Once the work was done and the assessment spread to plaintiffs' individual parcels, the city council no longer had power to dispense with the 50 per cent limitation. When the project cost has been incurred and the contractor is waiting for his money, a council debate over public health needs as justification for assessments exceeding half the property value is foolish and futile. Financial pressures, not health needs, dominate the debate at that point. The law commands that the debate occur and a decision be reached before and not after financial liability for the improvement project has been incurred.

It is altogether illogical to classify this particular defect as one which the legislative body had power to rectify before completion of the project when the defect was masked from potential objectors and thus from the legislative body itself. Existence of the power to rectify is only an abstraction under these circumstances.

The present case has some analogy to City Street Improvement Co. v. Pearson, 181 Cal. 640, 185 P. 962, 20 A.L.R. 1317. There, a local charter provision prohibited street improvement assessments exceeding 50 per cent of parcel value unless provision was made for installment payments by the landowners. The legislative body instituted assessment proceedings and the street work was actually completed without prior compliance with this requirement. The court held that the mandatory 50 per cent limitation could be escaped only by compliance with the provision for installment payments; that the defect was jurisdictional and the assessment void; that curative provisions of the law did not prevent the landowner from asserting the invalidity, even though the project had been fully completed. A pertinent portion of the opinion is the statement of the rule that general curative statutes are not construed to excuse compliance with specific mandatory duties imposed by law, unless the intent is clear. ‘* * * where several material acts are prescribed for obtaining jurisdiction and are adapted to that purpose, it is difficult to perceive how a general curative clause can be held to apply to any of them. For if it could be applied in one case to excuse the want of one of such acts, it could in another case be made to dispense with another, and so all of them would, one by one, be declared unimportant, and a compliance with any one of them would be sufficient in any case.’ (City Street Improvement Co. v. Pearson, supra, 181 Cal. at p. 649, 185 P. at p. 966.)

Generally speaking, the 1911 act attempts to accomplish settlement of protests before construction commences and liabilities to the contractor are incurred. Thus, notice and opportunity for protest are provided before adoption of the resolution of intention to do the work (secs. 5220–5225) and before award of the construction contract. (Sec. 5258.) Several curative provisions foreclose ‘nonjurisdictional’ objections by those who fail to present available protests before the job is commenced. (Secs. 5259, 5003.) These provisions do not supply landowners with an opportunity to protest the amount of their individual assessments. Under the 1911 act, individual assessments are computed and ‘spread’ only after the project is finished and the over-all cost is known. At that point the statutory plan provides for published notice (secs. 5362–5365) and for appeals to the legislative body. (Sec. 5366.) At that point, for the first time, the plan imparts statutory awareness of the dollar amount any one lot owner must pay. The landowner cannot be held to object to this dollar amount until he has an opportunity to know how many dollars are involved. Statutory opportunity does not arise until after the work has been done and the assessment spread. (City of Susanville v. Lee C. Hess Co., 45 Cal.2d 684, 690, 290 P.2d 520; Wells v. Wood, 114 Cal. 255, 257, 46 P. 96; see also, City Securities Co. v. Harvey, 176 Cal. 682, 169 P. 380.) Plaintiffs availed themselves of this opportunity by filing their appeals with the city council and by timely filing of this action following rejection of their appeals. Sections 5368 and 5369 are curative provisions which impart finality only to those assessment appeal decisions of the city council involving nonjurisdictional matters. (Hannon v. Madden, 214 Cal. 251, 256, 5 P.2d 4.) Plaintiffs' first count involves a failure to comply with a mandatory statutory prerequisite to any assessment exceeding 50 per cent of parcel value. If this failure to comply is insulated from judicial attack, then plaintiffs have been deprived of notice and a meaningful opportunity to protest the amount of their assessments throughout the entire course of the proceedings. Such a lack of notice and hearing violates due process concepts and results in a ‘jurisdictional’ deficiency which is beyond the reach of curative and validating (Miller v. McKenna, supra, 23 Cal.2d at p. 782, 147 P.2d 531; Southlands Co. v. City of San Diego, supra, 211 Cal. at p. 656, 297 P. 521.)

The second count of the complaint is premised on the circumstance that the properties of plaintiffs Durand and Vestal were not annexed to the City of Red Bluff until May 19, 1959, while the city council resolution under the Majority Protest Act was adopted two weeks earlier, on May 5, 1959. Assertedly, the city council lacked ‘jurisdiction’ to act with reference to these properties on May 5, not having secured permission of the Tehama County board of supervisors in compliance with section 5117. That section is part of the Improvement Act of 1911. It permits a city to extend an assessment district to include benefited lands outside is own boundaries with the consent of the legislative body of the affected areas. Such consent is a prerequisite to adoption of the resolution of intention (sec. 5118) and to the formation of the assessment district itself. (Sec. 5117; see Fahey v. City Council, 208 Cal.App.2d 667, 672–673, 25 Cal.Rptr. 314.)

While plaintiffs' theory is implied rather than expressed, their apparent argument is that the jurisdictional lack infects the subsequent assessment proceedings. The contention lacks merit. The Majority Protest Act, as we have seen, establishes a separate statutory proceeding as a prerequisite to, but not a part of, the special assessment proceedings. (Gaume v. City of Redlands, supra, 23 Cal.App.2d at p. 471, 73 P.2d 917.) The Majority Protest Act says nothing of properties lying outside the boundaries of the entity conducting the proceeding. Section 5117 is not incorporated in the Majority Protest Act either expressly or by implication, and compliance with it is unnecessary in the proceedings under the latter act.

In section 5117, the 1911 improvement act demonstrates a legislative intent to permit inclusion of lands lying outside the boundaries of the entity which is forming the improvement district. The Majority Protest Act is designed to operate in coordination with the 1911 act. The Legislature must have intended the owners of extrateriritorial property to have the benefits of the Majority Protest Act, rather than be deprived of it. The beneficial purposes of that act are aided, not hindered, by bringing extraterritorial lands within the proceeding under the Majority Protest Act if there is some prospect that they will later be included in the improvement district. Their ultimate subjection to assessment proceedings will, of course, depend on their annexation to the entity conducting the proceedings or on compliance with sections 5117 and 5118. The trial court properly sustained the demurrer to plaintiffs' second count without leave to amend.

The judgment is reversed and the cause remanded with directions to overrule the general demurrer to the first count and thereafter to proceed on the first count only of the amended complaint.

FOOTNOTES

1.  All statutory references in this opinion will be to the Streets and Highways Code unless otherwise noted.

2.  Although subsequently amended in 1959 and 1961, section 2808 read as follows at the time (May 1959) involved in this case: ‘None of the provisions of this division shall apply to proceedings heretofore or hereafter commenced for the construction of sanitary sewers and sewage disposal works when such proceedings have been recommended by the health officer of the city or county in which such proceedings are instituted as necessary as a health measure, if such recommendation is given in writing and spread upon the minutes of the legislative body conducting said proceedings and such necessity is found to exist by resolution adopted by the affirmative vote of four-fifths of the members thereof. The findings and determinations made by the legislative body pursuant to this section shall be final and conclusive upon all persons in the absence of actual fraud.’ (Calif.Stats.1945, ch. 271.)

3.  Section 3012 provides: ‘Any action, suit or proceeding of any kind or nature in which the validity of any of the proceedings take under the provisions of this division is questioned or attacked, and any such defense in any action, suit to proceeding shall be filed, within thirty days after the date of the adoption of the resolution or ordinance finally acting on said investigation report or after the date of final action taken pursuant to Sections 2804 or 2808 or Part 7 hereof, and in case such action is not brought or defense filed within said thirty days, then thereafter all persons whatsoever shall be barred in any action, suit or proceeding from pleading, asserting or claiming that any of the proceedings up to and including the action on said investigation report, or other action herein specified, were defective, faulty or invalid in any respect.’

4.  The body of the resolution adopted by the council is as follows: ‘WHEREAS, Lynn E. Wolfe, M.D. Health Officer has certified to this Body that in his opinion the installation of sanitary sewers in the area within the proposed Northern Sewer Assessment District of the City of Red Bluff, County of Tehama, State of California, is necessary as a health measure and has recommended to this Body that assessment proceedings be instituted for the installation of sanitary sewers in said area, by a letter to this City Council, dated May 15, 1959; ‘NOW, THEREFORE, BE IT RESOLVED that the said letter of the Health Officer of the City of Red Bluff, hereinabove referred to, be spread upon, the minutes of this Body in full.’

5.  Contract for example, section 5368 (part of the Improvement Act of 1911) which imparts finality only to those determinations of the legislative body made ‘upon notice and hearing.’

6.  Technical justification for this mild extension of judicial notice is available. The levy of special assessments by municipal bodies is a delegated exercise of the state's sovereign power of taxation. (40 Cal.Jur.2d, Public Improvements, secs. 4, 7.) In complying with state statutes dealing with special assessements, municipal officers in a sense act as the delegees of state power. Consequently, the Red Bluff health officer's communication, as an ingredient in the city's action under the Majority Protest Act, may be regarded as an administrative act by an instrumentality of the state, hence within the class of documents eligible for judicial notice under Code of Civil Procedure section 1875, subdivision 3.

7.  Compare section 2932, permitting majority protest to be overruled by a fourfifths vote where sewerage facilities are necessary ‘for the inhabitation or use of the property,’ apparently without regard for existing health needs.

8.  As codified in 1941 (Stats.1941, ch. 1069), section 2808 contained a proviso requiring an additional finding adopted by a four-fifths vote, stating that ‘in its [the legislative body's] opinion the contemplated acquisition or improvement is one in which the probable assessments will not exceed the limitations set up in this division [i. e., the Majority Protest Act], * * *.’ Such a finding fully accomplished the purposes of the Majority Protest Act (Gaume v. City of Redlands, supra, 23 Cal.App.2d at p. 471, 73 P.2d 917.) This proviso was deleted by amendment in 1945 (Stats.1945, ch. 271.) For some reason not now apparent, the city council of Red Bluff employed the deleted language in its 1959 resolution. As the statute read prior to 1945, the necessity for an opinion and prediction of assessments under the 50 per cent limit was a restriction on the council's power to dispense with the Majority Protest Act. This restriction disappeared with the amendment of 1945. With a relatively unrestricted power at its disposal, utterance of the opinion in 1959 did not satisfy an actual statutory demand, but instead created a trap for any property owner who might read it and be satisfied with its prognostication. An owner cannot be expected to display alertness to the danger of an excess assessment when the legislative body has assured him that such an assessment is not expected.

FRIEDMAN, Justice.

PIERCE, P. J., and VAN DYKE, J. pro tem., concur.